People v. D'Alvia

• Decision Date: 30 September 1991
• Parties: The PEOPLE, etc., Respondent, v. Robert D'ALVIA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 495

575 N.Y.S.2d 495

171 A.D.2d 96

The PEOPLE, etc., Respondent, v. Robert D'ALVIA, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 30, 1991.

Morosco & Cunard, White Plains (B. Anthony Morosco, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (John J. Sergi and Richard E. Weill, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, LAWRENCE and EIBER, JJ.

THOMPSON, Justice Presiding.

The defendant was convicted, following a jury trial, of one count of perjury in the first degree (Penal Law § 210.15) and three counts of criminal contempt in the first degree (Penal Law § 215.51). On this appeal of the conviction, we are called upon to determine whether the defendant's challenge to the trial court's error in permitting the jury to separate overnight after it had retired to deliberate in violation of the mandatory sequestration provision of CPL 310.10 was waived by the defendant's affirmative consent to the separation. We hold that the defendant waived the protection afforded by CPL 310.10 and, therefore, the error underlying the defendant's principal argument on appeal does not require the reversal of his conviction.

I

The defendant in this case, Robert D'Alvia, was an experienced criminal defense attorney and a former Assistant District Attorney in Westchester County. The charges against him have their genesis in an insurance fraud investigation commencing in 1987 in Westchester County. Dominick Lieto (hereinafter Lieto), the subject of that investigation together with his wife Carol Lieto, was eventually indicted and charged with 14 counts of insurance fraud. ¹ At the request of former Westchester County Supreme Court Justice Anthony Ferraro, Lieto's father-in-law and a longtime friend of the defendant's family, the defendant agreed to represent Lieto with respect to the insurance fraud charges. The key prosecution witness in the case against Lieto was David Rizzo, Lieto's former tenant and friend, who assisted the police in their investigation and testified against Lieto at a preliminary hearing. However, Rizzo later executed a backdated affidavit recanting his testimony and absolving Lieto of any wrongdoing. Meanwhile, Rizzo informed Assistant District Attorney Benedict Palazzolo who was in charge of the Lieto case that his affidavit was procured in exchange for a promised payment of $1,000 upon execution of the affidavit and an additional payment of several thousand dollars to be made upon dismissal of the charges against Lieto. This bribery scheme involved not only Justice Ferraro, Lieto and the defendant but also Rizzo's own attorney Robert Tassio. Tassio agreed to cooperate in the bribery investigation in exchange for a grant of immunity. Toward that end, Tassio wore a hidden electronic recording device to record surreptitiously his conversations with Ferraro ² and the defendant. Statements made by the defendant in these recorded conversations which were at variance with his Grand Jury testimony formed the basis for the perjury and contempt charges against him.

The trial of the defendant before County Court Judge George S. Kepner, an out-of-district visiting Judge, lasted approximately two and one-half months. Prior to summations and the court's charge to the jury, the following colloquy took place between Judge Kepner and the attorneys out of the presence of the jury:

"THE COURT: Now, one further question that the jury raised, and you don't have to get into this now if you don't want to, but under the state of the law at the moment if the parties consent, then the jury does not have to be sequestered at night. I'm not going to do this in front of the jury obviously. What is your feeling about that?

"MR. BOLEN [Assistant District Attorney]: Would you ask the defense first?

"MR. MOROSCO [defense counsel]: We haven't discussed it, Judge. May we have a minute?

"THE COURT: Sure".

The defense counsel then conferred with his cocounsel and the defendant with respect to the court's proposition and the colloquy then continued as follows:

"MR. MOROSCO: Judge, quite frankly, I've never had this experience in being called upon to do this before.

"THE COURT: Neither have I.

"MR. MOROSCO: So it's a new and novel exercise. What would be your thinking in terms of the period of deliberation if we did that? Would it just be the regular court hours, or would you keep them into the evening?

"THE COURT: I have been advised that the normal practice down here is that at supper time, which could be six or six-thirty or whatever, the jury, if they're sequestered, would go out to dinner and then to the hotel. They would come back the next morning after breakfast.

"MR. MOROSCO: That's one option. Usually the practice is to send them to dinner and to the hotel. It's a recent practice. It's not what it used to be.

"THE COURT: I once had a jury in and told them we were going to dinner, and they said no, and they all went back to the jury room.

"MR. MOROSCO: My question is, if we did not sequester the jury, what would be your procedure, barring what they said, what would be your practice?

"THE COURT: If they're not sequestered, then you don't have to worry about feeding them or getting them hotel reservations at all. So conceivably, I don't know. You could either keep them until seven and send them home, or feed them and bring them back, because you won't have to worry about bringing them to the hotel. Very frankly, most places they don't bring them back, from what I heard, because of the danger around the courthouse. Upstate we always bring them back. We keep them until eleven or twelve midnight. Now, I don't know what the situation is in White Plains, of having them eat and bringing them back.

"MR. BOLEN: There's no problem.

"THE COURT: If they were not sequestered we would bring them back after dinner.

"MR. MOROSCO: Okay. We have no objection if the jury is not sequestered".

The prosecutor was then provided an opportunity to respond on the issue of whether the jury should be permitted to separate during deliberations. Relying upon the Third Department case of People v. Silvernail, 55 A.D.2d 72, 389 N.Y.S.2d 641, the prosecutor stated that he had no objection to allowing the jury to separate as long as the defendant personally waived his right to sequestration of the jury. The colloquy continued:

"MR. MOROSCO: Unless you have them come back after dinner, and send them back with the Court Officer to have dinner, and then bring them back until nine or nine-thirty, whatever was a reasonable hour.

"THE COURT: Yes.

"MR. MOROSCO: It is my understanding that was the basis upon which we indicated no objection.

"MR. BOLEN: I'm getting ahead of this, and I don't mean to say this, but would the Court, depending upon how long deliberations go on, entertain an application, assuming they have a full day of deliberations, excusing the jury at six o'clock one particular evening?

"THE COURT: He's got a problem on that.

"MR. BOLEN: Yes, that's Saturday night.

"MR. MOROSCO: If we get into Saturday, I have no objection to releasing the jurors at six o'clock Saturday evening. We ought to also consider a late convening on Sunday so the jurors can attend church, if they wish.

"THE COURT: Yes. Mr. D'Alvia [the defendant], in view of what the Assistant District Attorney said, let me ask you this: Have you discussed with Mr. Morosco and Mr. Orlando [cocounsel] this question about sequestration of the jury?

"THE DEFENDANT: Yes.

"THE COURT: Do you have any objection if the jury does go home, to sleep, whatever, in the evening, based upon the fact that they would have dinner and then return to the courthouse and then go home?

"THE DEFENDANT: I have no objection, your Honor, to the way Mr. Morosco has stated it.

"THE COURT: Mr. Orlando, do you have any objection to this procedure?

"MR. ORLANDO: No, sir, based upon what you said, I have no objection".

Following this colloquy, the jury was brought into the courtroom and, in open court in the presence of the defendant and counsel, Judge Kepner informed the jury of the procedures which would be followed during their deliberations as agreed to by counsel and the defendant and that they would not be sequestered during that period.

The next day defense counsel and the prosecutor delivered their respective summations and the jury was instructed with regard to the law. After a dinner recess, the jury retired to begin deliberating at 8:43 P.M. The jury was returned to the courtroom at 10:00 P.M. in order to be dismissed for the night. Prior to the separation, the Judge admonished the jurors not to discuss the case amongst themselves or with anyone else during the overnight recess, not to visit the scene of any occurrences which were the subject of testimony at the trial, and not to read or listen to any newspaper, radio or television accounts about this case. The court further instructed the jury of its duty to report any attempts by any person to improperly influence any member of the jury. Similar admonitions were given at virtually every luncheon recess as well as before each overnight recess during the course of trial. Given the protracted length of the trial the jury heard the cautionary instructions nearly 40 times.

The court reconvened at 9:00 A.M. the next morning and the jury resumed deliberations. During the course of the day, pursuant to requests from the jury, the court replayed certain of the tape recordings introduced at trial and reinstructed the jury as to the elements of certain counts of the indictment. At 5:20 P.M., the jury returned its verdict finding the defendant guilty of perjury in the first degree and three counts of criminal contempt in the first degree.

II

On appeal from the conviction, the defendant argues that after submission of the case to the jury, the trial court's authorized overnight separation of the jury during deliberations constituted reversible error per se. Our analysis of this issue must...